Unfavorable Witnesses Flashcards
What does R v Whitehorn say about witnesses being called?
R v Whitehorn
All witnesses should be called whose evidence effects the narrative.
Must proffer a satisfactory explanation for not calling a witness.
Prosecutor is not bound to call all witnesses, if he judges their evidence to be unreliable, untrustworthy or otherwise incapable of belief.
What does R v Apostilidies say about calling witnesses?
A refusal to not call a witnesses is only justified in the overriding interests of justice.
It will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence.
Jones v Dunkel say about not calling a witnesses?
Where it is expected that the Crown call a witness and they don’t and in the absence of a satisfactory explanation. The jury is entitled to draw the inference that his evidence would not have assisted the Crown.
Mahmood v Western Australia says what about not calling a witness?
The question is not whether the jury may properly reach conclusions about fact, but whether they should entertain a reasonable doubt about the guilt of the accused.
What does S.192 of the Evidence Act 1995 say?
Court may grant leave, or permission as it sees fit.
Extent to which likely would add or reduce the length.
Extent of unfairness
Importance of such evidence
Nature of Proceedings
S.38 (1) Evidence Act 1995 says what?
(1) With leave of the court question the witness as though they were under cross examination.
(a) The evidence is unfavorable
(b) Witness is reasonable meant to know and is not making a genuine attempt.
(c) Whether the witness has made a prior inconsistent statement (PIS)
S. 38 (3) should be requested for in addition to subsection 1 in relation to what?
(3) May seek leave to question a party with matters only relevant to credibility.
S.38 (4) is reinforced by R v Burrell and says what?
The cross examination of that persons witness is to occur prior to the other party. And if the party is crossing examining then S.38 (4) still applies and allows both parties to cross examine again.
What matters need to be taken into account under S.38 (6)?
(a) Must give intention to seek leave at the earliest opportunity.
(b) Address the likelihood the defence will cross examine or extent.
What are the two defining common laws for the word ‘Unfavourable’?
Souleyman - Not favourable
Lozano - Even neutral evidence may satisfy the meaning of unfavourable.
What does Adam v The Queen say about prior inconsistent statements?
Tribunals are not to treat prior inconsistent statements as evidence of the witness being unreliable. they are to be taken as the truth.
S.60 of the Evidence Act 1995 is - Exception evidence relevant for a non hearsay purpose. How does this relate to Prior Inconsistent statements?
Prosecutor to reply on S.60 for having the prior inconsistent statement admitted as the truth of that witnesses evidence.
S.43 Prior Inconsistent Statement, Evidence Act 1995 says what in regards to statements?
(2) If a witness does not admit that he or she has made a prior inconsistent statement, the cross examiner is not to adduce evidence of the statement otherwise than from the witness unless:
(a) Informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and
(b) drew the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence.
(3) Allows the prosecution to re-open the case if (2) is complied with.
What case says that the prosecutor is not bound to call all witnesses, if he judges their evidence to be unreliable, untrustworthy or otherwise incapable of belief?
R v Whitehorn.
What case says the prosecutor must have more then a mere suspicion about the witness giving unreliable evidence?
R v Apostilides.
